Patten Too Smart For Own Good? New Motion Could Clear Accomplice Fratto

Does a motion filed by Kody Patten potentially clear Toni Fratto of murder charges?

Attorneys for confessed Wendover killer Kody Patten petitioned Judge Dan Papez to remove a possible death penalty facing their client on the grounds that Patten did not kidnap his victim, 16 year old Micaela “Mickie” Costanzo.

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Filed last week and reprinted in this edition the motion argues that the state has offered no proof that Costanzo was kidnapped by Patten before the murder and thus fails to meet the legal bar where a death penalty would be applicable.

Since it was reinstated the Nevada death penalty is applicable only in murder cases with “special circumstances” including the commission of another felony such as kidnapping, rape or torture.

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According to Patten’s motion Costanzo ‘voluntarily’ accepted a ride from Patten when she left the school after track practice and agreed to travel with her killer to the gravel pit five miles west of town where she was allegedly killed by Patten and Patten’s girl friend Toni Fratto after an argument became violent.

While making a case against the death penalty the motion also implies that Costanzo was killed between the hours of 5 pm and 6 pm on the afternoon of March 3rd, a time line Patten’s legal team had disputed.

Before this latest motion Patten’s lawyers, John Ohlson of Reno and Jeffrey Kump of Elko suggested that Costanzo had been killed much later the 5 pm to 6 pm window they now suggest in their motion.

Both Patten and Fratto confessed to the murder of Mickie Costanzo but gave widely different time lines.

In his confession taken just days after the murder Patten suggest that the killing did indeed take place shortly after 5 pm perhaps no later than 5:30 pm on the afternoon of March 3rd.

Patten also does not mention Fratto even being at the scene of the killing and in a throw away line to detectives says he left the gravel pit after the killing to pick up his girl friend.

In her confession made some six weeks after the murder, Fratto parrots Patten’s words except for the time of the killing putting it well after 7 pm that day. The reason for the difference in time lines is quite simple until Fratto’s where abouts are known from 5 pm to 7 pm and she was not with Patten and thus could not have been murdering Costanzo.

From 5 pm to a little before 6 pm Fratto’s alibi is her mother who has insisted on the witness stand that her daughter was with her at their home. According to one of Fratto’s lawyers David Lockie of Elko there may be even more evidence corroborating his clients presence between 5 pm and 6 pm.

According to the minutes of a March 3rd Recreation District meeting Fratto’s whereabouts from 6 pm to 6:53 pm were documented as being in the audience during the meeting.

The girl’s presence at the meeting was also corroborated at the meeting by several witnesses.

Even if Fratto’s mother is not to be believed the less than an hour from the time Mickie Costanzo is last seen alive and the start of the recreation district meeting leaves scant time for the crime and the cover-up.

A run through conducted by the High Desert Advocate this April suggested that 55 minutes was enough time but just barely. Following Fratto’s version of events in the police report the Advocate timed the drive involved. The drive from the West Wendover High School to the Nevada gravel pit, the murder scene took approximately 10 minutes. The drive back through Wendover to the Utah gravel pit took approximately 15 minutes and the drive back from the Utah gravel pit to the Fratto house another 15 minutes. With the drive times subtracted the couple had about 20 minutes to commit the murder, destroy the evidence across town and then return home to cleanup before Toni Fratto was seen again with her parents.

Fratto explains away the narrow window of opportunity in her confession by claiming that the murder occurred after Patten picked her up around 7 pm after the meeting was adjourned.

She also claimed that  Costanzo was in the car with Patten and that the girl was unrestrained. However by 6 pm Mickie Costanzo mother Celia had already begun panicking about her missing daughter. Frighten when her daughter did not answer her cel phone Celia Costanzo began calling Mickie friends and by 6:30 had already notified police. By the time Toni Fratto said her boyfriend was picking her up to commit murder with the victim in the car a full blown search for Mickie Costanzo had already begun by West Wendover Police and dozens of volunteers.

In testimony in both Fratto’s and Patten preliminary hearing Celia Costanzo as well as several of Mickie Costanzo’s friends portrayed the victim as a girl who would always answer or return calls from her mother within minutes of receiving them.

The idea that Mickie Costanzo if free to do so would not answer dozens of calls to her phone in two and a half hours is considered impossible.

When Fratto first came forward with her confession it was considered a boon to Patten. Claiming to be the planner and instigator of the murder, Fratto also admitted to delivering the killing blow against the young girl, Patten’s attorneys were painting as a romantic interest.

But if Fratto’s time line is to be believed it will be much easier for district attorney Marc Torvinen to prove Mickie costanzo was held two to two and a half hours against her will otherwise known as kidnapping by Kody Patten thus qualifying him and for the death penalty.

If on the other hand Costanzo was killed shortly after she went missing proving kidnapping will be much more difficult for the state. That could also mean however that Kody Patten acted alone and the case against Toni Fratto would collapse.

“Toni Fratto was always just a huge smokescreen,” said a source involved in the case. “Without her this is a simple murder of by a sociopathic kid of a sweet young girl. She (Fratto) was used by Patten’s side to confuse everyone. But they were probably too smart for their own good. With her time line the DA almost has a slam dunk proving kidnapping and murder but with the other time line Kody patten would have almost certainly had to have acted alone and again be qualified for the death penalty.”

Capitol punishment in Nevada is reserved for premeditated murder with extenuating circumstances which include:

Murder perpetrated by means of poison, lying in wait or torture, or by any other kind of willful, deliberate and premeditated killing.

Murder committed in the perpetration or attempted perpetration of sexual assault, kidnapping, arson, robbery, burglary, invasion of the home, sexual abuse of a child, sexual molestation of a child under the age of 14 years or child abuse.

Murder committed to avoid or prevent the lawful arrest of any person by a peace officer or to effect the escape of any person from legal custody.

Murder committed on the property of a public or private school, at an activity sponsored by a public or private school or on a school bus while the bus was engaged in its official duties by a person who intended to create a great risk of death or substantial bodily harm to more than one person by means of a weapon, device or course of action that would normally be hazardous to the lives of more than one person.

Before she made her confession Fratto was in almost daily contact with Patten. Fratto visited him as often as twice a week making the four hour round trip to Elko on Wednesdays and Sunday ever since Patten was arrested March 7th.

She also talked to him at least once a day. The frequent and continued contact the girl had with Patten also undermines the police report that claims Fratto knew details about the case that were not released to the public. Her attorneys can easily make the case that she knew those details not because she participated in the killing but because Patten told her.

Far from the black widow who directed Patten to kill a romantic or social rival, friends and acquaintances of both Fratto and Patten describe her as a mouse of a girl who was “barely there”.

Even with the confession several observers in the courtroom expressed doubt that a jury would convict the girl for the murder.

Investigators admitted that there was not a scintilla of evidence putting her at the scene of the crime at the time it was said to have occurred.

“There isn’t a foot print, there isn’t a finger print, there isn’t any trace of her at the murder scene,” said one investigator. “This is the damnedest case I have ever seen.”

Click below for motion

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